Submitted Case Hits One Year Mark Without Decision. State of Ohio v. Brandon Moore.

Update: On December 22, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Whenever a case we’ve blogged about has been pending for a year without a decision, we note that. On February 4, 2015 the Supreme Court of Ohio heard oral argument in State of Ohio v. Brandon Moore, 2014-0120. There has not yet been a decision in the case. The issue in is whether a juvenile non-homicide offender can be sentenced to a “de facto” life sentence.

After several appeals and re-sentencings, Brandon Moore was sentenced to a 112-year prison term for convictions in 2002 on three counts each of rape, complicity to rape, aggravated robbery, and kidnapping, and firearm offenses, all arising from offenses he committed when he was fifteen years old. Moore will be eligible for judicial release at age 92.

Moore’s lawyer argued that Moore was given a de facto life sentence, now prohibited for juvenile offenders under a series of cases from the U.S. Supreme Court about how and why juvenile offenders are different from adult offenders, and must be given a meaningful opportunity for release. See, generally, Roper v. Simmons, 543 U.S. 551 (2005), (banning the death penalty for juveniles who committed their crimes before the age of 18), Graham v. Florida, 560 U.S. 48 (2010) (sentencing juvenile non-homicide offenders to life without parole is an Eighth Amendment violation), and Miller v. Alabama, 132 S.Ct. 2455 (2012) (The Eighth Amendment prohibits imposing a mandatory life sentence with no possibility of parole on juvenile homicide offenders). The building blocks from these cases are that the hallmarks of youth in this context are immaturity, impetuosity, and failure to appreciate risks and consequences.

To add to this list, on January 25, 2016, in Montgomery v. Louisiana, the U.S. Supreme Court held that its decision in Miller v. Alabama was a new substantive rule of constitutional law, and must be given retroactive effect. Henry Montgomery was 17 years old in 1963 when he killed a deputy sheriff in Louisiana, and received an automatic sentence at the time of life without parole. Montgomery argued that Miller made his mandatory life sentence illegal, and the high court is giving him another chance, at age 69:

“In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, however, prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored,” wrote majority opinion author Anthony Kennedy.

In Brandon Moore’s case, Moore’s lawyer argued that all juvenile non-homicide offenders must be given a meaningful opportunity for release, based on demonstrated maturity and rehabilitation. This does not mean the juvenile is guaranteed release. But what a judge cannot do is decide at the outset that a juvenile non-homicide offender is never fit to re-enter society, by giving a sentence that is so long that it ensures that the juvenile will die in prison, which was what was done in Moore’s case. A sentence that denies a juvenile non-homicide offender the meaningful opportunity for release violates the Eighth Amendment.

The prosecution argued the sentence in Moore’s case was an aggregate, not a single, sentence, and thus does not afoul of pertinent U.S. Supreme Court decisions, particularly Graham. Read more about the argument in the Moore case here and here.

Given the length time Moore has been under submission, I am expecting a treatise on juvenile offenders. Chief Justice O’Connor has made protection of the rights of juveniles a hallmark of her tenure, and can usually count on Justices Lanzinger and Pfeifer as allies. See for example, In re C.S.,2007-Ohio-4919, (invalidating waiver of counsel by juvenile after mother had advised him to do so), In Re CP, 2012-Ohio-1446 (portions of Ohio’s Adam Walsh Act that impose automatic, lifelong registration and notification requirements on juvenile sex offenders violate the prohibition against cruel and unusual punishment in the Ohio Constitution), State v. Long,2014-Ohio-849. (a trial court must consider youth as a mitigating factor in imposing a sentence of life without parole on a juvenile offender, and it must be clear on the record that the court has done so). See, particularly, the Chief’s passionate dissent in In Re M.W., 2012-Ohio-4538, in which the majority held that a juvenile has no statutory right to a lawyer during police questioning before court proceedings have begun. (Justice Lanzinger did not join the Chief on this one.)

Just as likely, Moore can expect Justice O’Donnell to side with the prosecution. O’Donnell has been consistently unsympathetic to juvenile offenders, especially to those committing particularly heinous crimes, and particularly toward juveniles who are almost 18.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.